When judges must be judged

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An independent panel adequately meets the need to review
judicial misbehaviour or incapacity.

Judicial life in Melbourne got off to what can only be described
as a fractious beginning. On June 17, 1843, Justice John Walpole
Willis, the first resident judge of the Supreme Court of NSW in the
district of Port Phillip, was summarily removed from office by the
governor. He had been sent to the fledgling settlement just two
years earlier to avoid an increasingly nasty spat with the NSW
chief justice. Justice Willis was by all accounts a brilliant
lawyer, but a difficult fellow. That he would clash mightily with
members of the infant Melbourne establishment perhaps should have
come as no surprise. Things came to a head when he imprisoned
prominent merchant J. B. Were for prevarication, adding a month to
the sentence every time the witness objected until the sentence
reached six months. Upon his sacking, Justice Willis achieved the
rare distinction in the British legal world of twice being
impeached as a judge. He had previously been removed from office in
Canada in 1828. The fact that Justice Willis suffered from a
"functional derangement of the liver" after serving in the West
Indies probably did nothing for his disposition either.

The Willis case still resonates because the need to remove or
even to discipline judges or magistrates is rare. There have been
recent instances in South Australia and Queensland in which
judicial officers have been removed from office, but these are
exceptional. In Victoria, Attorney-General Rob Hulls has lately
introduced new rules that enable judges accused of misbehaviour or
incapacity to be investigated by a panel of their peers. A panel
will comprise three members of a standing committee of seven judges
drawn from the state and federal courts. The legislation also
standardises the grounds for removal and provides that Parliament
must ratify any dismissal decision. The move follows an
investigation by Crown counsel Professor Peter Sallmann, which
recommended against establishing a full-blown judicial commission,
such as that in NSW, which also has purview over consistency in
sentencing and judicial education. Given the costs involved, versus
the relative rarity of complaints, it was felt that a body on this
scale was uncalled for in Victoria. But the need for an independent
tribunal, as proposed, to monitor judicial behaviour is surely
warranted and necessary if judicial propriety and respect for the
law is to be upheld.